Basilica (code of law)
BASILICA 9. yüzyılda Doğu Roma imparatorluğu boyunca geçerli olan belirsizliğe, yasal yasalara ilişkin olarak geçerli olan belirsizliğe son verilmesi amacıyla, Yunan dilinde hazırlanmış bir kanun kanunu. Bu belirsizlik, 6. yüzyılın hukukçularının çelişkili düşünceleriyle, tüm otoritelerin mevzuatından yoksun bırakılmış bir öğreti sistemi sonucu, İmparator Justinian'ın yasasına verilecek doğru yorumlamanın yapılmasına neden olmuştur. ve emperyalist hakimler nihayet kararlarını düzenlemek için hangi hukuk kurallarına göre olduklarını bilme konusunda kaybedilmişlerdir. İmparator Leo tarafından, bu kötülüğü gidermek için Isaurian tarafından bir çaba gösterilmiş, ancak yasadaki reform girişimi belirsizliğini arttırmak için oldukça hesaplanmıştır; Makedon Fesleğen’e adalet yönetimini saflaştırıp kanunu anlaşılır bir yasa haline getirerek bir kez daha kandırdığı, kullandığı tahtıma layık olduğunu gösterme hakkı saklıdır. İmparator Basil'in yeni kodu çerçevelemek için aldığı kısım konusunda önemli tartışmalar yaşandı. Bununla birlikte, çaresizliğe düştüğü antik yasaları resmi bir şekilde iptal ettiği ve daha muhtemel görüşün, devam edecek olan eski yasalarda yapılacak bir revizyona neden olduğu konusunda şüphe yoktur. yürürlüktedir ve kırk kitaba bölünmüştür ve bu yasaların daha sonra genişletilmiş ve oğlu Filozof Leo tarafından altmış kitaba dağıtılmıştır. Leo'nun oğlu ve halefi olan Constantine Porphyrogenitus tarafından bu kodun daha fazla gözden geçirildiği,Patrik Photius'un Nomocanon'u , imparator Leo tarafından revize edilen kodun metninden farklı olan Bazilika'dan geçenleri belirtir. Bununla birlikte, otoritenin ağırlığı, vücudun kaptanı Sympathius başkanlığında bir hukukçu komisyonu atayan imparator Leo'nun hükümdarlığında yaptığı resmi revizyondan sonra yapılan kodun gözden geçirilmesine karşıdır. -guard, babasının işini, gözden geçirmeye onun ilk yılında ima yapar için Novellae. Bu son sonuç, durumdan daha muhtemeldir; imparator Leo tarafından revize edilen kod metninin, her ikisi de yüksek saygınları olan Michael Psellus ve Michael Attaliates'in eserlerinde yer alan Bazilika'dan yapılan alıntılarla aynı fikirdedir. Balsamon'dan bir asır önce yaşamış olan ve Konstantin Porfirojenitus devrinde yer alan kodun herhangi bir ikinci revizyonu ile yazılarında bulunan Bazilika'dan yapılan diğer alıntılarla ilgili olarak Konstantinopolis mahkemesi Mathaeus Blastares ve Constantine Harmenopulus, ikisi de Balsamon'dan kısa bir süre sonra yazdı ve ikincisi, hukukçudan çok fazla bir hukukçuyu öğrendi ve kodun resmi metni dışında hiçbir şeyi belirtemeyecek kadar doğru bir avukat buldu. Yazarlar, İmparator Leo'nun kodunun şimdi ayırt edildiği, Bazilika teriminin kökenine karar vermez. Kodun kendisinin aslen Eski Yasaların Gözden Geçirilmesi başlıklı olduğu görülüyor ( ἡ κάθνακάθαρσις τῶν παλαιῶν νόμων ); daha sonra , eserin altmış kitaplara bölünmesinden elde edilen ἡ ἑξηκοντάβιβλος başlığı kullanıldı ; ve son olarak, 10. yüzyılın tamamlanmasından önce, kod tayin edilecek geldi ὁ βασιλικός veya τὰ βασιλικά eliptik formlarda olmak ὁ βασιλικὸς νόμος ve τὰ βασιλικά νόμιμαyani İmparatorluk Yasası veya İmparatorluk Anayasası. "Bazilika" teriminin bu açıklaması, imparator Aslan'ın babasının adından türetilmesinden daha muhtemeldir, ancak 11. ve 12. yüzyılların Bizans hukukçusu olarak, imparatorun Basil'in inisiyatifinde aldığı kısmı tamamen görmezden geldi. oğlu tarafından tamamlanan yasal reformlar; Leo yazılmıştır imparator babasının adının yanında βασίλειος asli, dehası göre hangi, antik Yunan dili, sıfat βασιλικός iyi ayrılamadığı. Mükemmel MS yok. Bazilika metninden korunmuştur ve kodun herhangi bir bölümünün varlığı, Batı Avrupa hukukçularının, Avrupa hukuku üzerine yapılan çalışmalarda önemine dikkat çekinceye kadar, dikkate alınmamış gibi görünmektedir. Viglius Zuichemus, Theophilus'un Yunanca Paraşütü'nün basımına önsözünde1533 yılında yayınlandı. Ancak bir asır, MSS'ye kadar, Bazilika'nın altmış kitaplarının basılmasından önce geçti. Daha sonra tedarik edilen materyallerin var olduğu bilinen, Louis XIII himayesinde, Charles Annibal Fabrot tarafından yedi ciltte yayınlandı. editöre yayınlanması sırasında yıllık iki bin lira harcayan Fransa’nın kraliyet matbaa basını emrinde. Bu baskı, büyük bir taahhüt ve önemli bir eseri olmasına rağmen, orijinal kodun çok kusurlu bir sunumuydu. Bazilika'nın altmış kitabının yeni restore edilmiş ve çok daha eksiksiz bir metni Leipzig'de, K. W. E. Heimbach ve G. E. Heimbach tarafından düzenlenen altı ciltte (1833-1870) yayınlandı. Bazilika'nın bütünlüğü içinde bize inmemesi gerektiği kadar önemli bir hukuk devletinin olması garip görünebilir. ancak İskenderiye patrikliği Markı tarafından Theodoras Balsamon'a verilen ve Basilica'nın kopyalarının 12. yüzyılda patrik eserin bir kopyasını alamadığı için kıt olduğu anlaşılan bir mektup korunmuştur. Kuralların büyük bir kısmı, kopyalarının çoğalmasına engel teşkil ederken, onların gerekliliği, en ünlü hukukçulardan oluşan, zaman zaman sinopozlar ve içeriğinin encheiridiaları tarafından yayınlanmıştır. hesaplarında çok dolu bir hesap bulunur.Histoire au droit byzantin , 1846'da Paris'te yayınlanan Mortreuil'in avukatı tarafından. [ 477 ][ 478 ] ← Bazilika (bina)Basilicata → ▲ English BASILICA, a code of law, drawn up in the Rumeyka language, with a view to putting an end to the uncertainty which prevailed throughout the East Roman empire in the 9th century as to the authorized sources of law. This uncertainty had been brought about by the conflicting opinions of the jurists of the 6th century as to the proper interpretation to be given to the legislation of the emperor Justinian, from which had resulted a system of teaching which had deprived that legislation of all authority, and the imperial judges at last were at a loss to know by what rules of law they were to regulate their decisions. An endeavour had been made by the emperor Leo the Isaurian to remedy this evil, but his attempted reform of the law had been rather calculated to increase its uncertainty; and it was reserved for Basil the Macedonian to show himself worthy of the throne, which he had usurped, by purifying the administration of justice and once more reducing the law into an intelligible code. There has been considerable controversy as to the part which the emperor Basil took in framing the new code. There is, however, no doubt that he abrogated in a formal manner the ancient laws, which had fallen into desuetude, and the more probable opinion would seem to be, that he caused a revision to be made of the ancient laws which were to continue in force, and divided them into forty books, and that this code of laws was subsequently enlarged and distributed into sixty books by his son Leo the Philosopher. A further revision of this code is stated to have been made by Constantine Porphyrogenitus, the son and successor of Leo, but this statement rests only on the authority of Theodorus Balsamon, a very learned canonist of the 12th century, who, in his preface to the Nomocanon of Patriarch Photius, cites passages from the Basilica which differ from the text of the code as revised by the emperor Leo. The weight of authority, however, is against any further revision of the code having been made after the formal revision which it underwent in the reign of the emperor Leo, who appointed a commission of jurists under the presidency of Sympathius, the captain of the body-guard, to revise the work of his father, to which he makes allusion in the first of his Novellae. This latter conclusion is the more probable from the circumstance, that the text of the code, as revised by the emperor Leo, agrees with the citations from the Basilica which occur in the works of Michael Psellus and Michael Attaliates, both of them high dignitaries of the court of Constantinople, who lived a century before Balsamon, and who are silent as to any second revision of the code having taken place in the reign of Constantine Porphyrogenitus, as well as with other citations from the Basilica, which are found in the writings of Mathaeus Blastares and of Constantine Harmenopulus, both of whom wrote shortly after Balsamon, and the latter of whom was far too learned a jurist and too accurate a lawyer to cite any but the official text of the code. Authors are not agreed as to the origin of the term Basilica, by which the code of the emperor Leo is now distinguished. The code itself appears to have been originally entitled The Revision of the Ancient Laws (ἡ ἀνακάθαρσις τῶν παλαιῶν νόμων); next there came into use the title ἡ ἑξηκοντάβιβλος, derived from the division of the work into sixty books; and finally, before the conclusion of the 10th century, the code came to be designated ὁ βασιλικός, or τὰ βασιλικά, being elliptical forms of ὁ βασιλικὸς νόμος and τὰ βασιλικά νόμιμα, namely the Imperial Law or the Imperial Constitutions. This explanation of the term "Basilica" is more probable than the derivation of it from the name of the father of the emperor Leo, inasmuch as the Byzantine jurists of the 11th and 12th centuries ignored altogether the part which the emperor Basil had taken in initiating the legal reforms, which were completed by his son; besides the name of the father of the emperor Leo was written βασίλειος, from which substantive, according to the genius of the ancient Greek language, the adjective βασιλικός could not well be derived. No perfect MS. has been preserved of the text of the Basilica, and the existence of any portion of the code seems to have been ignored by the jurists of western Europe, until the important bearing of it upon the study of the Roman law was brought to their attention by Viglius Zuichemus, in his preface to his edition of the Greek Paraphrase of Theophilus, published in 1533. A century, however, elapsed before an edition of the sixty books of the Basilica, as far as the MSS. then known to exist supplied materials, was published in seven volumes, by Charles Annibal Fabrot, under the patronage of Louis XIII. of France, who assigned an annual stipend of two thousand livres to the editor during its publication, and placed at his disposal the royal printing-press. This edition, although it was a great undertaking and a work of considerable merit, was a very imperfect representation of the original code. A newly-restored and far more complete text of the sixty books of the Basilica was published at Leipzig in six volumes (1833-1870), edited by K. W. E. Heimbach and G. E. Heimbach. It may seem strange that so important a body of law as the Basilica should not have come down to us in its integrity, but a letter has been preserved, which was addressed by Mark the patriarch of Alexandria to Theodoras Balsamon, from which it appears that copies of the Basilica were in the 12th century very scarce, as the patriarch was unable to procure a copy of the work. The great bulk of the code was an obstacle to the multiplication of copies of it, whilst the necessity for them was in a great degree superseded by the publication from time to time of synopses and encheiridia of its contents, composed by the most eminent jurists, of which a very full account will be found in the Histoire au droit byzantin, by the advocate Mortreuil, published in Paris in 1846. Early Journal Content on JSTOR, Free to Anyone in the World This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in the world byJSTOR. Known as the Early Journal Content, this set of works include research articles, news, letters, and other writings published in more than 200 of the oldest leading academic journals. The works date from the mid-seventeenth to the early twentieth centuries. We encourage people to read and share the Early Journal Content openly and to tell others that this resource exists. People may post this content online or redistribute in any way for non-commercial purposes. Read more about Early Journal Content at http://about.istor.org/participate-istor/individuals/early- journal-content . JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. THE BASILICA— A NINTH CENTURY ROMAN LAW CODE WHICH BECAME THE FIRST CIVIL CODE OF MODERN GREECE A THOUSAND YEARS LATER. The modern kingdom of Greece received its birth from the Greek War of Independence against Turkey. When these nine- teenth century Greeks in 1821 took up arms against their tyran- nical and oppressive Mohammedan masters, they very fittingly signalized their freedom by definitely adopting the great code of their Byzantine forefathers to be their own law.^ And for thirteen years this great Eastern Roman Imperial Code, the Basilica, was clothed with statutory force among the Greek revolutionists, not only during their long war for independ- ence, but also for two years after modern Greece finally achieved her freedom from the Turkish yoke.^ Then the Basilica gave way to the present Civil Code of Greece, namely, the Hexa- biblos.^ But this change did not interrupt at all the influence of Roman law codes in modern Greece : for this same Hexabiblos — originally published in the fourteenth century and being the last code of the old Roman Empire — was, before its modern Greek promulgation in 1835, thoroughly revised and expanded in con- nection with the more voluminous Basilica.* Hence it is no exaggeration to say that the essence of modern Greek private law is the Basilica, for the present Civil Code of Greece is a double abridgment of the Roman Imperial ninth century Basilica — the first synopsis or abstract being made five hundred years ' This action was in harmony with existing conditions as to law among the conquered Greeks. For, after the Turks took Constantinople and destroyed the Eastern Roman Empire in 1453, they allowed (and still allow today) their Greek subjects to be governed as to personal law and status by the Greek patriarch of Constantinople, in whose ecclesiastical courts was (and is still) applied the post-Justinian law of the Roman Empire as received into the canon law of the orthodox Greek church : Sherman, Roman Laws in the Modern World, Vol. I, Sees. 189, 194. 'Sherman, Id., Sec. 194. 'Id. 'id. (363) 364 UNIVERSITY OF PENNSYLVANIA LAW REVIEW later, in the fourteenth century,^ and the second one thousand years later, in the nineteenth century.® What sort of a codification was this old Eastern Roman code, the vigor of which has already spanned ten centuries and still endures today among the modern Greeks? This question will be answered by a brief history of the Basilica, which will be followed by translations of illustrative excerpts taken from this greatest of post-Justinian Roman legislative monuments. A few years before the death of Alfred the Great in England there was promulgated at Constantinople about A. D. 892 by the Eastern Roman Emperor Leo VI a long-heralded Greek abridg- ment of Justinian's sixth century celebrated Corpus Juris.'' Leo's '' legislation, inspired by his imperial father Basil the Macedonia, is now best known as the Basilica, a title derived from the Greek T^ /Soer(\tKa (the "Imperial" laws).* Five hundred years later the medieval Thessalonian judge Harmenopulos, in his own Hexabiblos, thus accurately describes the Basilica: "Finally Leo the Wise, most celebrated Emperor, united (Justinian's) Digest, Code, and most of the Institutes into one work, and, arranging this compilation into sixty books, he published the so-called Hexacontabiblos, which he divided into six volumes." The reasons for Leo's codification were as fol- lows: The change in the official language of the Roman Empire from Latin to Greek,® and the growth of new law since Justinian's time, which had made it necessary to revise the Justinianean codification, then four hundred years old. But so scrupulously careful was Leo to respect the earlier codification (which is the source of the Basilica), that he never ° Sherman, Roman Law in the Modern World, Vol. I, Sec. 182. * Sherman, Id., Sec. 194. 'The Emperor Justinian did not call his grand codification by the title of Corpus Juris; this synthetic appellation came into use late in the sixteenth century, being first employed by the celebrated French jurist, Denis Godefroy: Sherman, Roman Law in the Modern World, Vol. I, Sec. 135. ' To derive "Basilica" from the name of the Emperor Basil, although plausible, is not correct : Sherman, Id. The Greek paaiKucis means literally royal (the nearest approximation in the Greek language to the Latin "imperialis"). "See Sherman, Roman Law in the Modem World, Vol. 1, Sec. 167. THE BASrUCA-A NINTH CENTURY ROMAN LAW CODE 36S promulgated the Basilica as actually superseding Justinian's grand work. Nevertheless, because the Basilica were written in Greek and were an adaptation of Justinian's law to the needs of the ninth century Roman Empire, the Justinianean codification, although never actually abrogated by Leo or any subsequent emperor down to the end of the empire in A. D. 1453, gradually became supplanted, and by the end of the tenth century fell into disuse.^" Leo's Basilica were especially intended for the use of prac- tising lawyers. It is not known who were the compilers of this most excellent and famous Byzantine codification. The Basilica have been translated into Latin by the learned Heimbach during the years 1833- 1870; his work constitutes one of the greatest literary achievements of the ninetenth century." The Basilica have never been translated into English. The style of the Basilica is thoroughly Roman, as will appear from the following excerpts, which are strikingly terse and lucid. Moreover, these excerpts portray the innate juridical excellence of this greatest Graeco-Roman code, which has been promulgated twice — first in the ninth century and second in the nineteenth century: "Law is so called from justice, for it is the art of what is good and equitable. Moreover, law is either public or private.*^ And it is either written or unwritten.^* To know the laws is ^o know, not their words, but their sense." " "Laws should be made concerning what happens frequently, and not rarely.^® The law-making power should disregard what happens only once or twice and not deem it worthy of legisla- tion.*^ The use of a statute is to command . . \ to forbid . . . to permit ... to punish." *^ "Use of the Justinianean law books in the Roman Imperial courts did not, however, entirely cease until the twelfth century. Sherman, Id., Sees. 168, 176. " Heimbach's Latin translation was not the earliest, — that of Fabrot in 1638 has this honor. Heimbach employed all the extant MSS. of the Basilica. In 1897 a supplement, known as Volume 7, was added to Heim- bach's work by two Italians, Ferrini and Mercati. See Sherman, Roman Law in the Modern World, Vol. I, Sec. 176; Vol. Ill, Sec. 955. "Bas., I, I, I. "Bas., I, i, 15. " Bas., I, I, 6. " Bas., 1, i, 17. "Bas., I, I, 27. "Bas., 1, i, 18. 366 UNIVERSITY OF PENNSYLVANIA LAW REVIEW "All law is established by consent or necessity, or is fixed by custom.^* Concerning matters as to which there is no written law, custom and usage govern.'^ . . . Long-established custom has the force of a statute and should govern . . . those mai ters as to which there is no written law." ^" "A private agreement does not abrogate public law.^^ A gift is that which is transferred imder no necessity." ^^ "Freedom is a priceless thing. ^^ Consent, not sexual inter- course, makes a marriage.^* Capital punishment means death and loss of citizenship." ^' "Three persons make a corporation.^® A legacy made to a lawful corporation is valid." ^^ "No one can transfer to another a greater right than he himself has.^* No one can transmit to his heir a greater right than he himself has.^^ Under equal conditions he who is in possession is preferred.^" A creditor permitting his pledge to be sold loses his pledge." ^^ "Obligations arise from contracts, torts, or from the law itself.*^ An impossible obligation is void.** Persons who are absent may make contracts by means of letter and messenger." ** "A debtor is a person from whom, against his will, money may be obtained.*^ He who promises to pay in a certain place is regarded as having contracted at that place.*® In every obliga- tion in which no time of payment is fixed, payment is due imme- diately." *^ "A bona fide purchaser is either one who did not know that the thing sold to him belonged to another, or one who thought that the vendor had a right to sell, for instance, as agent or guardian.** A purchaser at a sale made under order of court is "Bos., I, I, 52. "Bas., I, I, 41, pr. " Bas., I, I, 41, I and Bas., i, i, 42. " Bas., 2, 3, 45. * Bas., 2, 2, 82. " Bas., 2, 3, 82. " Bas., 44, 18, 19. " Bas., 2, 3, 106. " Bas., 2, 3, 54. " Bas., 2, 3, 30. " Bas., 2, 3, 120. Bas., 2, 2, 99. *B(W., 2, 3, 128. '' " Bas., 2, 3, 158. "Bas., 52, I, I. This third variety of obligations is quasi contractual or quasi tortious. " Bas., 2, 3, 185. " Bas., 52, 1, 20. " Bas., 52, I, 2. '" Bas., 2, 3, 14. " Bas., 2, 2, 105. " Bas., 2, 2, 106. THE BASILICA-A NINTH CENTURY ROMAN LAW CODE 367 a bona fide possessor.^ Nothing is so contrary to good faith as '' force or intimidation." *** "My partner's partner is not a partner of mine.** No one commits an injury unless he does that which he had no legal right to do.*^ Lack of skill may be reckoned as negligence.*® Tort actions do not descend against the heirs of the tortfeasor." ** "As long as a will remains valid, so long the rights of intestacy are in abeyance.*^ In wills the wishes of the testator should be liberally interpreted.*^ The greater includes the less.*^ In the whole is also contained a part." ** "An action is the right of suing a person in court for what is due.** Whatever is done by a judge outside of his jurisdic- tion is invalid.^** No one shall be dragged from his house (in a civil action).®^ Defendants are more often favored than plain- tiffs." «2 "He who is silent is not regarded as confessing, yet he does not deny.^' Whatever is decided by a judgment is held to be true." 5* "If I die simultaneously with my son who was over the age of puberty, I am regarded as dying first; but if the son was under the age of puberty, the contrary is the rule.^' Every general statement of law is weak, in that it may be subverted by an exception." ^^ From the excellence of the Basilica it is no wonder that this code became not only the chief authority of the Byzantine-Roman lawyer until the very end of the Roman Empire at Constantino- ple, but also the first code of revived modern Greece ten centuries after its original promulgation. Charles P. Sherman, D.C.L. Formerly Assistant Professor of Roman Law, Yale Uni- versity Law School. "Bas., 2, 3, 137. "Bas., 2, 3, 113. * Bas., 2, 3, 116. "Bas., 52, i, 50. " Bas., 2, 3, 47. ■• Bas., 2, 3, 170. « Bas., 2, 3, 151. " Bas., 2, 30, 103. "Bas., 2, 3, 132. "Bas., 2, 3, 125. **Bas., 2, 3, III. '"Bas., 2, 3, 142. " Bas., 2, 3, 89. " Bas., 2, 3, 207. " Bas., 2, 3, 12. " Bas., 44, 18, 8. "Bas., 2, 3, no. "Bas., 2, 3, 202.